Continental Casualty Company v. Duyzend et al

Filing 1

COMPLAINT against defendant(s) Does 1-100, Kathryn Cox, Henri F. Duyzend, Sharon Duyzend, Cheryl Grant, Beverly Hawley, Richard Hawley, David Hubert, Jill Ortiz, Satoko Prigmore, Thomas Prigmore, William Mark Smith, Daryl Stuart, Laurel Stuart, Kristine Walla, Robert Wallace, Dale Hollingsworth, Ruth Hollingsworth, Sarah Hollingsworth, Thomas Huber, Daniel O'Neal, Patricia O'Neal, Chris Stuart, Cyndi Sundby, Douglas Sundby, Derry Tiedeman, Nicole Tiedeman, Megan Walla, Anne Welsh, Tom Welsh, Sandy Zickuhr, Tracy Zickuhr, Zoe Zickuhr (Receipt # 0981-3321765), filed by Continental Casualty Company . (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons, # 17 Summons, # 18 Summons, # 19 Summons, # 20 Summons, # 21 Summons, # 22 Summons, # 23 Summons, # 24 Summons, # 25 Summons, # 26 Summons, # 27 Summons, # 28 Summons, # 29 Summons, # 30 Summons, # 31 Summons, # 32 Summons, # 33 Summons, # 34 Summons, # 35 Summons, # 36 Summons, # 37 Summons, # 38 Summons, # 39 Summons, # 40 Summons, # 41 Summons, # 42 Summons, # 43 Summons, # 44 Summons, # 45 Summons)(Nelson, Justin) Modified on 8/23/2013 to edit capitalization and spelling of party names(PM).

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EXHIBIT F 1 HONORABLE JULIE SPECTOR 2 Hearing Date: Thursday, August 8, 2013 Without Oral Argument 3 4 5 6 7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 8 9 10 11 12 13 14 15 16 17 18 19 KATHRYN COX; BEVERLY HAWLEY and RICHARD HA WLEY, husband and wife; WILLIAM MARK SMITH and NADINE SMITH, husband and wife; CHERYL GRANT; JILL ORTIZ; THOMAS PRIGMORE and SATOKO PRIGMORE, husband and wife; ROBERT WALLA and KRISTINE WALLA, husband and wife; DARYL STUART and LAUREL STUART, husband and wife; DOUGLAS SUNDBY and CYNDI SUNDBY, husband and wife; CHRIS STUART; MEGAN WALLA; THOMAS HUBER; DAVID HUBER; DANIEL O'NEAL and PATRICIA O'NEAL, husband and wife, DALE HOLLINGSWORTH and RUTH HOLLINGSWORTH, husband and wife; SARAH HOLLINGSWORTH; NICOLE TIEDEMAN and DERRY TIEDEMAN, husband and wife; TRACY ZICKUHR and SANDY ZICKUHR, husband and wife, and ZOE ZICKUHR, 20 PLAINTIFFS' MOTION TO AMEND COMPLAINT Plaintiff(s), 21 22 NO. 11-2-31164-3 SEA v. HENRI DUYZEND, D.D.S. and SHARON DUYZEND, husband and wife, 23 Defendant( s). 24 25 26 PLAINTIFFS' MOTION TO AMEND COMPLAINT - 1 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415 I. 1 2 3 INTRODUCTION Plaintiffs move the Court for leave to file an amended complaint. The proposed amended complaint is attached to the Declaration of Michael S. Wampold as Exhibit 1. n. 4 5 STATEMENT OF FACTS On September 9, 2011, these 29 plaintiffs brought this lawsuit against defendant Henri 6 Duyzend (and his wife Sharon Duyzend and their marital community) alleging that Dr. Duyzend 7 engaged in multi-decade pattern and practice of negligent and fraudulent dental treatment on his 8 patients. See Dkt. No.1, Complaint for Injuries and Damages. Over the course of many years 9 Dr. Duyzend performed hundreds of dental procedures on plaintiffs-including root canals and 10 crowns-that were not indicated and were unnecessary. Id. at,-r,-r 9-12, 16. What's more, the 11 vast majority of Dr. Duyzend's unnecessary dentistry fell below the standard of care for a 12 reasonably prudent dentist. Id. at,-r 16. Plaintiffs now face many years of additional dental re- 13 treatments to repair the damage that Dr. Duyzend did. 14 On June 25, 2013, this Court entered an Order to Stay Proceedings while the parties 15 participated in an arbitration before the Honorable Paris Kallas (Retired) at Judicial Dispute 16 Resolution. Following six days oftestimony and evidence, Judge Kallas issued a verdict in favor 17 of plaintiffs and against defendants, finding that Dr. Duyzend was negligent, failed to obtain 18 plaintiffs' informed consent, engaged in fraud, and violated Washington's Consumer Protection 19 Act. The plaintiffs, collectively, were awarded $35,212,000 in damages. 20 On July 25,2013, this Court reduced the verdict to a judgment against defendants Henri 21 and Sharon Duyzend in the amount of$35,212,000.00, and retained jurisdiction for the purpose 22 of enforcing the judgment. 23 Defendants Henri and Sharon Duyzend own TOG-POP, LLC. See Declaration of 24 Michael S. Wampold, Ex. 2, Henri Duyzend Dep., p.l15:2-9. Documents produced during 25 discovery-and Dr. Duyzend's deposition-revealed that in December 2008, about six months 26 after numerous patients began to make claims against Dr. Duyzend, defendants transferred PLAINTIFFS' MOTION TO AMEND COMPLAINT - 2 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 significant assets to the Delaware LLC. Wampold Dec., Ex. 3; Ex. 2, Henri Duyzend Dep., p. 2 107:25-108:11. 3 Before the case was privately tried to Judge Kallas, plaintiffs deposed defendant Dr. 4 Duyzend at the King County Superior Court. During that deposition, in an effort to obtain 5 evidence supporting their fraud and CPA claims, plaintiffs posed questions to Dr. Duyzend about 6 his transfer of assets to the LLC, which Dr. Duyzend described as "estate planning." Wampold 7 Dec., Ex. 2, Henri Duyzend Dep., p. 90:9-12 Defense counsel objected to the line of questioning 8 and the following discussion ensued: THE COURT: Let me get the time line straight here. He retires in December of '077 9 10 MR. VERSNEL: Yes. 11 THE COURT: Claims start rolling in the spring of'08, March? 12 MR. VERSNEL: Yes. 13 14 THE COURT: By June there's approximately 50 claims of which 15 or so have been settled? 15 MR. VERSNEL: My recollection, yes. 16 THE COURT: In November of'08, he starts doing the estate planning? 17 MR. VERSNEL: Yes. 18 Understanding the timeline, Judge Spector ruled that plaintiffs were allowed to go forward with 19 their line of questions regarding Dr. Duyzend's so called "estate planning." The trial court ruled 20 as follows: 21 THE COURT: Okay. This is what the Court's going to do. I'm going to allow you to make inquiry. I'm going to note [defense counsel's] objection for the record. 22 23 The timing of everything is critical. I don't think it's essential that they have to be claims for fraud that were beginning to roll in in the spring of '08, what I think is essential is that coupled with Dr. To's revelations and the fact that these first claims for malpractice were coming in, I think mayor may not be admissible at trial, I'm not going to make that ruling, but I think it's discoverable because it's important to know what legal vehicles the estate planning was contemplating without violating attorney-client privilege, 24 25 26 PLAINTIFFS' MOTION TO AMEND COMPLAINT - 3 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATILE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415 obviously, with his estate planner. And but I think: it's ripe for discovery here today. 1 2 7 So, I'm going to overrule the objection with the understanding that it may not be admissible in front of a jury or a trier of fact, however this case is going to be tried, but I think: it's appropriate, I think: it's fair, without going to -- you said it right at the very beginning, without going back to chief civil for special proceeding -- or supplemental proceedings, which is what it was beginning to sound like when they line up literally right down the hallway for supplemental proceedings trying to find the assets on basic creditor/debtor law issues, credit cards, that type of thing. It's not that type of situation. This is more -- I'm more concerned about the timing ofthings because of Dr. To taking over and immediately finding problems with the billings and the records. 8 So, on that basis alone, I'm going to allow it. 3 4 5 6 9 Wampold Dec., Ex. 4, Hemi Duyzend Dep., p. 110:24-112:4. 10 Plaintiffs now seek leave to amend their complaint to add the Delaware LLC owned by 11 defendants Hemi and Sharon Duyzend, TOG-POP, LLC, as a defendant to this lawsuit based on 12 the fraudulent transfer of assets completed by defendants in order to escape liability and 13 collection. III. 14 15 STATEMENT OF ISSUES CR 15(a) provides liberal standards for amendment. Are plaintiffs entitled to an order 16 granting leave to amend the complaint to add TOG-POP, LLC as a named defendant where 17 justice requires such amendment and where this Court retained jurisdiction for the purposes of 18 enforcing the judgment? 19 20 21 This motion is supported by the Declaration of Michael S. Wampold, together with the pleadings and files herein. V. 22 23 24 EVIDENCE RELIED UPON IV. LEGAL ARGUMENT Under CR 15(a)'s liberal standards for amendment, plaintiffs should be allowed to amend their complaint. CR 15(a) states: 25 [A] party may amend his pleadings only by leave of the Court or by written consent of the adverse party; and leave shall be freely given when justice so requires. (emphasis added). 26 PLAINTIFFS' MOTION TO AMEND COMPLAINT - 4 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 "It is often said that the test as to whether the trial court should grant leave to amend is 2 whether the opposing party is prepared to meet the new issue." Karl Tegland 3A Washington 3 Practice, Rules Practice CR 15 (5 th ed. 2006) (citing Quackenbush v. State, 72 Wn.2d 670, 434 4 P.2d 736 (1967)). 5 Here, justice requires allowing plaintiffs to amend their complaint to add the defendants' 6 corporation, TOG-POP, LLC, as a defendant to this lawsuit, as it is clear that defendants engaged 7 in the fraudulent transfer of significant assets to the LLC for the purpose of avoiding liability and 8 collection by any plaintiffs, including these plaintiffs, that ultimately obtained an enforceable 9 judgment against defendants in violation of Washington's Uniform Fraudulent Transfer Act 10 statute, RCW 19.40 et seq. Moreover, clearly these defendants, as the owners of the LLC, are 11 prepared to meet any new issues related to their LLC and collectability of the debt that they now 12 owe. 13 14 For these reasons, plaintiffs respectfully request leave to file an amended complaint adding TOG-POP, LLC as a defendant to this lawsuit. VI. 15 PROPOSED ORDER 16 A proposed order is attached hereto. 17 DATED this Sfday of July, 2013. 18 R7C{KNM PETERSONIVVAMPOLD 19 20 Michael S. Wampold, WSBA No. 26053 Ann H. Rosato, WSBA No. 32888 Mallory C. Allen, WSBA No. 45468 Attorneys for Plaintiffs 21 22 23 24 25 26 PLAINTIFFS' MOTION TO AMEND COMPLAINT - 5 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415 CERTIFICATE OF SERVICE 1 2 I certify that on the date shown below a copy of this document was sent as stated 3 below. 4 Clerk of the Court King County Superior Court 516 Third A venue Seattle, WA 98104 Honorable Julie Spector King County Superior Court 516 Third Avenue, Judge's Mailroom Seattle, WA 98104 John Versnel Lawrence & Versnel PLLC 4120 Columbia Center 701 Fifth Avenue Seattle W A 98104 John E. Hart Hart Wagner 2000 SW Broadway, Suite 2000 Portland, OR 97205-3070 5 6 7 8 9 10 11 12 13 14 ~ ~ ~ ~ v~a efiling/email VIa messenger via US Mail via fax via efiling/email via messenger via US Mail via fax v~a efiling/email VIa messenger via US Mail via fax v~a efiling/email VIa messenger via US Mail via fax SIGNED in Seattle, Washington this --'-_ _ day of July, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS' MOTION TO AMEND COMPLAINT - 6 69496 Peterson I Wampold Rosato I Luna I Knopp 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-1609 PHONE: (206) 624-6800 FAX: (206) 682-1415

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